November 16, 2007

Thanks to How Appealing's post here, I see that the Sixth Circuit today split in Doe v. Bredesen, No. 06-6393 (6th Cir. Nov. 16, 2007) (available here) over a challenge to the application of Tennessee's new GPS sex-offender tracking rules. This first paragraph from the partial dissenting opinion by Judge Keith provides an effective review of the holding and the terms of the debate:

The crux of the matter before us concerns Tennessee’s Sexual Offender and Violent Sexual Offender Registration, Verification, and Tracking Act of 2004.... Doe, a convicted sexual offender, alleges that the Registration Act and the Surveillance Act violate the Ex Post Facto Clause of the United States Constitution. Specifically, Doe takes issue with (1) the retroactive application of the Registration Act (§ 40-39-207(f)(1)(B)), which requires Doe to register with the Tennessee sexual offender registry for the remainder of his life, and (2) the enactment and retroactive application of the Surveillance Act (§ 40-39-301 et seq.), which allows the Tennessee Board of Probation and Parole to enroll Doe in a “Satellite-Based Monitoring Program” to monitor (via a global positioning system (“G.P.S.”)) his movements while on probation. Because our Circuit has foreclosed Doe’s argument with respect to the Registration Act, see Cutshall v. Sundquist, 193 F.3d 466, 476-77 (6th Cir. 1999), I concur with the majority’s dismissal of this claim. However, as to the Surveillance Act, I strongly disagree with the majority’s decision to affirm the district court’s dismissal of this claim. I cannot, in good conscience, join my colleagues’ opinion which finds no constitutional violation in requiring Doe to wear a relatively large box as a symbol of his crime for all to see. The Surveillance Act, particularly the satellite-based monitoring program, as applied to Doe, is punishment, excessive, and indeed, the modern day “scarlet letter.” I vigorously dissent.

It is only a matter of time before all the circuits will be having to weigh in on similar legal issues surrounding GPS tracking. The long-term question is not whether these issues will come before the Supreme Court, but rather when and how.